Court File and Parties

Court File No.: CV-16-547218 Date: 20160809 Superior Court of Justice - Ontario

Re: Noble Victor Jarvis Ei, Plaintiff -and- David M.W. Morlog, Defendant

Before: F.L. Myers J.

Read: August 8, 2016

Costs Endorsement

[1] By endorsement dated July 7, 2016, reported at 2016 ONSC 4476, I dismissed this action for being vexatious on its face under Rule 2.1 of the Rules of Civil Procedure. The plaintiff did not avail himself of the opportunities that were provided to him to make submissions on either the merits of the issue under Rule 2.1 or costs.

[2] The statement of claim makes no mention of the defendant. It turns out that the defendant is a Crown Prosecutor for the Public Prosecution Service of Canada who has carriage of criminal proceedings against the plaintiff before the Ontario Court of Justice.

[3] The statement of claim makes no legal or linguistic sense. It contains a number of familiar elements indicative of OPCA claims as discussed by Rooke ACJ in Meads v. Meads, 2012 ABQB 571. OPCA claims are an abuse of process.

[4] The plaintiff did not make a serious effort to advance a lawful claim against the defendant. The claim can only have been issued to punish the defendant or to try to achieve some perceived tactical advantage in the plaintiff’s criminal proceedings. In either case, the action represents an abuse of the processes of this court. It has subjected the defendant and his counsel to wasted time and money.

[5] In asking for a costs award, the defendant fairly raises a note of caution concerning access to justice. All parties to litigation bear the risk of paying costs to the opposite party. I agree however, that in balancing the relevant factors in assessing costs, the court should consider the policy that self-represented parties should not be dissuaded by costs awards from bringing bona fide claims even if their claims might lack some of the attributes of claims brought by legal professionals. While costs rules apply to self-represented parties as much as to represented parties, some care should be taken to take into account the self-represented party’s lack of representation in applying the costs rules. However, there is no policy favouring access to abusive or vexatious proceedings. Absent a timely response from the plaintiff to show that he brought this claim in good faith, I see no access to justice issue. In fact, access to justice favours efforts to free up the courts from abusive proceedings so that real claims brought in good faith can be heard more efficiently.

[6] In MBNA Canada Bank v. Luciani, 2011 ONSC 6347 Brown J. (as he then was) held that an OPCA claim involving a fee schedule shakedown was an abuse of process warranting an award of full indemnity costs. Mew J. was of the same view in Myers v. Blackman, 2014 ONSC 5226. In this case, the plaintiff’s conduct was reprehensible within the meaning of the case law on costs in that he put the defendant to the stress and costs of civil proceedings with no bona fide basis.

[7] The defendant has delivered a bill of costs claiming a billable rate on only a substantial indemnity basis of $250 per hour for counsel employed by the Department of Justice with ten years’ experience. That is a very reasonable rate and one that could have been higher.

[8] The plaintiff Leon Victor Jarvis is ordered to pay to the defendant, forthwith, costs calculated on a substantial indemnity basis fixed in the amount of $2,256.39 inclusive of disbursements and any applicable taxes.

[9] If Mr. Jarvis has paid someone to learn how to bring his claim, perhaps he will report this outcome to his vendor and seek his money back and indemnity for this costs award from the vendor. The sooner that OPCA “gurus” are held to account by dissatisfied customers who have incurred foreseeable costs and punitive damages liabilities, the sooner the scourge of abusive OPCA claims will be cleansed from our court system.

[10] The registrar is to deliver a copy of this endorsement on the plaintiff and counsel for the defendants by email if it has their email addresses. The court dispenses with any requirement for the plaintiff’s approval of the form or content of the formal order.

F.L. Myers J. Date: August 9, 2016